2013 (9) TMI 244 - AT - Central Excise

Tribunal orders Rs.1 crore deposit, asset disposal conditions

S&S POWER SWITCHGEAR LTD Versus COMMISSIONER OF CENTRAL EXCISE, CHENNAI

The Tribunal directed the applicant to deposit Rs.1,00,00,000/- within 8 weeks, with further conditions related to asset disposal and compliance ... Stay Application - Classification - Isolator metallic under heading 85.35 or 85.38 of the Schedule to the Central Excise Tariff Act, 1985 - Isolator is consisting of (1) Rotating hamper assembly (2) Fixed contact assembly (3) Support Insulators (4) Isolator base (5) Operating mechanism and (6) Interlocks – Held that:- Prior to the period under this dispute and later to the period under dispute, the appellant was classifying the product heading 85.35 cannot be a basis for deciding the dispute having regard to the fact especially in view of the fact that the Counsel had not demonstrated that rates of duty for the two headings were different as is the situation for the period under dispute - Revenue not choosing to contest a matter which was of no consequence in terms of revenue collection cannot be a basis for deciding the matter at hand - Appellant's factory is closed down from the year 2002 - Applicant is a Joint Venture company and their subsidiary M/s. S&S Power Switchgear Equipment Ltd. is still working - Applicant failed to make out a prima facie case for unconditional stay – Applicant is directed to deposit a sum of Rs.1,00,00,000/- (Rupees One crore only) – Decided against the Assessee. Issues:1. Application for waiver of predeposit of duty and penalty.2. Classification of Isolator metallic under Chapter Heading 85.35 or 85.38.3. Consideration of previous orders and financial hardship in the decision-making process.Issue 1: Application for waiver of predeposit of duty and penaltyThe applicant filed an application seeking a waiver of predeposit of duty amounting to Rs.3,90,89,657/- and a penalty of Rs.1 lakh. The applicant, engaged in the manufacture of Isolators and parts falling under Chapter Heading 85.35 and 85.38, had paid duty at different rates for various parts. The Revenue contended that Isolator metallic should be classified under Heading 85.38. The applicant argued financial hardship and presented a Balance Sheet for the year 2011-12 to support their case. The Tribunal, after hearing both sides, directed the applicant to deposit Rs.1,00,00,000/- within 8 weeks, with further conditions related to the disposal of assets and compliance reporting. The Tribunal waived the predeposit of the balance amount of duty and penalty upon compliance with the conditions and stayed the recovery during the appeal process.Issue 2: Classification of Isolator metallic under Chapter Heading 85.35 or 85.38The Tribunal observed that the Isolator consists of various components, and there was no dispute that the applicant was paying duty at 20% on all parts under Heading 85.38 except Isolator metallic. The contention that Isolator metallic is an essential part of the Isolator and should be classified under Heading 85.35 was noted for detailed consideration during the appeal hearing. The Tribunal did not accept the argument that a previous order in a different case should bind the decision in the present case. The Tribunal also dismissed the argument that the appellant's historical classification under a different heading should influence the current dispute, especially considering the difference in duty rates for the relevant period. The Tribunal emphasized that the financial status of the applicant, including the closure of their factory and accumulated losses, did not establish a prima facie case for unconditional stay, leading to the decision on the deposit amount and conditions.Issue 3: Consideration of previous orders and financial hardship in the decision-making processThe applicant's representative highlighted a previous order in a related case and the financial difficulties faced by the applicant, including the closure of their factory and substantial losses. However, the Tribunal held that the previous order did not bind the decision in the present case, and the historical classification by the appellant was not determinative due to the differing duty rates. The Tribunal considered the overall facts and circumstances, directing the deposit of a specified amount and imposing conditions related to asset disposal and compliance reporting. The Tribunal also addressed a miscellaneous application for additional evidence, stating that it had been considered in the final decision.